[Federal Register: May 20, 2008 (Volume 73, Number 98)]
[Rules and Regulations]
[Page 29075-29084]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my08-10]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[FWS-R9-MB-2008-0057; 91200-1231-9BPP-L2]
RIN 1018-AV11
Authorizations Under the Bald and Golden Eagle Protection Act for
Take of Eagles
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: These final regulations provide two mechanisms to authorize
take under the Bald and Golden Eagle Protection Act (Eagle Act) by
certain persons who have been authorized under the Endangered Species
Act (ESA) to take bald eagles (Haliaeetus leucocephalus) and golden
eagles (Aquila chrysaetos).
DATES: This rule goes into effect on June 19, 2008.
FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory
Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax
Drive, Mailstop 4107, Arlington, VA 22203-1610; or 703-358-2329.
SUPPLEMENTARY INFORMATION:
Background
The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d)
(Eagle Act) prohibits the take of bald eagles and golden eagles unless
pursuant to regulations (and in the case of bald eagles, take can be
authorized only under a permit). While the bald eagle was listed under
the ESA (16 U.S.C. 1531 et seq.), we authorized incidental take of bald
eagles through take statements under ESA section 7 and through section
10 incidental take permits (50 CFR 402, Subparts A and B; 50 CFR
17.22(b) and 17.32(b)). Those authorizations were issued with
assurances that the Service would exercise enforcement discretion in
relation to violations of the Eagle Act (16 U.S.C. 668-668d) and the
Migratory Bird Treaty Act (16 U.S.C. 703-712) (MBTA). Since the bald
eagle has been removed from the ESA's List of Endangered and Threatened
Wildlife throughout most of its range (see 72 FR 37345, July 9, 2007
and 73 FR 23966, May 1, 2008), the prohibitions of the ESA no longer
apply except to the Sonoran Desert nesting bald eagle population.
However, the potential for human activities to violate Federal law by
taking bald eagles (and golden eagles) remains under the prohibitions
of the Eagle Act and the MBTA. The Eagle Act defines the ``take'' of an
eagle to include a broad range of actions: ``pursue, shoot, shoot at,
poison, wound, kill, capture, trap, collect, or molest or disturb.''
``Disturb'' is defined in our regulations at 50 CFR 22.3 as ``to
agitate or bother a bald or golden eagle to a degree that causes, or is
likely to cause, based on the best scientific information available,
(1) injury to an eagle, (2) a decrease in its productivity, by
substantially interfering with normal breeding, feeding, or sheltering
behavior, or (3) nest abandonment, by substantially interfering with
normal breeding, feeding, or sheltering behavior.'' Many actions that
were considered likely to incidentally ``take'' (harm or harass) eagles
under the ESA may also ``take'' eagles under the Eagle Act, as those
terms have been defined by statute and regulation.
The ESA provides broad substantive and procedural protections for
listed species but at the same time allows significant flexibility to
permit activities that affect listed species. In particular, sections
7(b)(4) and 10(a)(1)(B) of the ESA provide that we may authorize the
incidental take of listed wildlife in the course of otherwise lawful
activities. Nationwide, since 2002, the Service issued an average of 52
incidental take statements per year that covered anticipated take of
bald eagles under the ESA's section 7 (50 CFR 402, Subpart B). During
that same 5-year period, we issued nine incidental take permits that
included bald eagles under the ESA's section 10(a)(1)(B). A total of
126 such incidental take permits have been issued for bald eagles and
12 incidental take permits include golden eagles as covered, non-listed
species (50 CFR 17.22(b) and 17.32(b)). The statutory and regulatory
criteria for issuing those ESA authorizations included minimization,
mitigation, or other conservation measures that also satisfied the
statutory mandate under that Eagle Act that authorized take must be
compatible with the preservation of the bald or golden eagle. Our
practice was to provide assurances in each section 7 incidental take
statement and section 10 permit that we would not refer the incidental
take of a bald eagle for prosecution under the Eagle Act, if the take
was in compliance with the terms and conditions of a section 7(b)(4)
incidental take statement or the conditions of a section 10(a)(1)(B)
incidental take permit. \1\ Now that the
[[Page 29076]]
bald eagle is delisted in most of the U.S., new mechanisms are needed
to address take pursuant to the Eagle Act.
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\1\ Compliance with the conditions of a section 10(a)(1)(B)
permit entails compliance with the terms of the associated Habitat
Conservation Plan and Implementing Agreement (if applicable).
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The Eagle Act provides that the Secretary of the Interior may
authorize certain otherwise-prohibited take of eagles through
promulgation of regulations. The Secretary is authorized to prescribe
regulations permitting the ``taking, possession, and transportation of
[bald or golden eagles] * * * for the scientific or exhibition purposes
of public museums, scientific societies, and zoological parks, or for
the religious purposes of Indian tribes, or * * * for the protection of
wildlife or of agricultural or other interests in any particular
locality,'' provided such permits are ``compatible with the
preservation of the bald eagle or the golden eagle'' (16 U.S.C. 668a).
In accordance with this authority, the Secretary has previously
promulgated Eagle Act permit regulations for scientific and exhibition
purposes (50 CFR 22.21), for Indian religious purposes (50 CFR 22.22),
for take of depredating eagles (50 CFR 22.23), for possession of golden
eagles for falconry purposes (50 CFR 22.24), and for take of golden
eagle nests that interfere with resource development or recovery
operations (50 CFR 22.25).
We have not previously promulgated permit regulations to implement
the statutory provision which allows the Secretary to authorize take
``for the protection of * * * other interests in any particular
locality.'' This statutory authority accommodates the spectrum of
public and private interests (such as utility infrastructure
development and maintenance, road construction, operation of airports,
commercial or residential construction, resource recovery, recreational
use, etc.) that have received authorization to take eagles under the
ESA.
Shortly before delisting the bald eagle, we proposed regulations to
permit take under the Eagle Act where the take is associated with
otherwise lawful activities, and to permit removal of eagle nests for
emergency safety needs (see 72 FR 31141, June 5, 2007). That proposed
rule also included provisions we are finalizing today under this rule
to extend Eagle Act take authorizations to persons previously
authorized to take eagles under the ESA, provided the take occurs in
compliance with the terms of that ESA authorization. Because the
authorizations associated with this final rulemaking are categorically
excluded from the requirement to prepare an environmental assessment
under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321-
4347) under Departmental procedures and we find it is appropriate to
have these authorizations available at the earliest practical date, we
have bifurcated the proposed rule and are finalizing the ESA-related
provisions ahead of the remainder of the proposal. That remainder is
currently undergoing a NEPA analysis which we intend to complete later
this year.
Summary of the Rulemaking
Eagle take that was prohibited under the ESA is, in many instances,
also prohibited under the Eagle Act. Both statutes define take to
prohibit killing, wounding, pursuing, shooting, capturing, and
collecting the species they protect (16 U.S.C. 668c; 16 U.S.C.
1532(19)). The ESA definition of ``take'' additionally includes the
terms ``harm'' and ``harass,'' while the Eagle Act includes ``molest or
disturb'' in its definition of ``take.'' The regulatory definitions of
``harm,'' ``harass,'' and ``disturb'' differ; however they do overlap
in several ways, with the result that an action considered likely to
incidentally take eagles under the ESA may also take eagles under the
Eagle Act.
Under this final rule, we extend Eagle Act authorizations to
holders of existing ESA authorizations as seamlessly as is possible
under the applicable laws. There are two mechanisms through which these
new regulations provide Eagle Act authorization. First, the rule
establishes regulatory provisions under 50 CFR 22.11 to provide take
authorization under the Eagle Act to ESA section 10(a)(1)(B) permittees
where the bald eagle is covered in a Habitat Conservation Plan (HCP) or
the golden eagle is covered as a non-listed species, as long as the
permittee is in full compliance with the terms and conditions of the
ESA permit. This provision will also apply to the take of bald eagles
and golden eagles specifically authorized in any future HCPs, whether
or not eagles are then listed under the ESA. This provision also
extends Eagle Act take authorization to ESA permits for Scientific
Purposes and permits for Enhancement of Propagation or Survival (i.e.,
Recovery permits) issued under ESA section 10(a)(1)(A).
Second, the rule establishes a new permit category to provide
expedited Eagle Act permits to entities authorized to take bald eagles
through section 7 incidental take statements. Permits are not available
under this new permit for golden eagles because as a non-listed species
no take of golden eagles was previously authorized under the ESA's
section 7.
Theoretically, this new permit category also may be used to extend
Eagle Act take authorization to take exempted under section 7 of the
ESA in the future where the bald eagle or golden eagle is protected
under the ESA (e.g., for take of Sonoran Desert nesting bald eagles, or
if bald eagles or golden eagles become ESA-listed in any portion of
their respective ranges). However, in addition to the regulations being
finalized herein, we intend to finalize regulations later this year to
establish a new permit that will authorize take that is associated
with, but not the purpose of, an action (proposed 50 CFR 22.26) (see 72
FR 31141, June 5, 2007). As part of that subsequent rule, we intend to
amend the regulations we are promulgating today in a manner to restrict
their use to section 7 incidental take statements issued prior to the
date this later rule becomes effective. For any incidental take
exempted under ESA section 7 that is authorized after the date Sec.
22.26 becomes effective and that also constitutes take under the Eagle
Act, the only permit that would be available to provide Eagle Act take
authorization would be the new permit to be created by a final version
of 50 CFR 22.26. Although the reasonable and prudent measures and
associated terms and conditions of section 7 incidental take statements
satisfy the statutory mandate of the Eagle Act, once a permit becomes
available to authorize eagle take that is not associated with an ESA
take authorization, for purposes of accountability and consistency, the
same process and procedures should be used to authorize take under the
Eagle Act regardless of whether it was also exempted under ESA section
7. Therefore, except for take authorized through ESA section 10 permits
(which will confer authority to take under both the ESA and the Eagle
Act under the new provision at 50 CFR 22.11), any take we authorize
that is associated with, but not the purpose of an activity, would be
provided under a single regulatory authority, 50 CFR 22.26, once it
becomes available, rather than 50 CFR 22.28. Persons and entities
permitted under Sec. 22.28 may apply for a permit under Sec. 22.26
when it becomes available.
The reason why different authorizing mechanisms are needed to
extend Eagle Act take authorization to take authorized under ESA
section 10 versus take exempted under ESA section 7 is that the Eagle
Act requires that any bald eagle take to be authorized must be (1)
pursuant to regulations, (2) authorized upon procurement of a permit
from the Secretary of the Interior, and (3)
[[Page 29077]]
compatible with the preservation of the bald eagle. We now find that
the previously issued ESA take authorizations are compatible with the
preservation of the eagle, and we are able to extend Eagle Act take
authorization to holders of ESA permits through this regulation without
the need for an additional permit because (1) this regulation satisfies
the Eagle Act statutory mandate that take be authorized by regulation,
and (2) a permit to take eagles has been procured from the Secretary of
the Interior. In contrast, the take authorizations provided under
section 7 of the ESA were not provided through a permit, and so the
holders of those authorizations cannot be extended an Eagle Act
authorization without a permit being procured prior to such taking.
Description of the Rulemaking
New Provisions at 50 CFR 22.11 To Extend Eagle Act Take Authorization
to Permittees Authorized To Take Eagles Under the ESA
Section 10(a)(1)(B) of the ESA authorizes incidental take permits
for activities included in an HCP. One-hundred and twenty-six such
permits cover bald eagles. Twelve permits authorize incidental take of
golden eagles for ESA purposes (should the golden eagle be listed in
the future) by their inclusion as covered non-listed species. Our
practice was to issue these permits with a statement of enforcement
discretion from the Service that provided assurances that the Service
would not refer any take of bald or golden eagles for prosecution under
the Eagle Act, as long as the take was in full compliance with the
terms and conditions of the permit and HCP. While the bald eagle was
protected under the ESA, these assurances also conveyed the Federal
Government's commitment to make no additional conservation demands of
permittees who were fully implementing the conservation measures within
their HCPs.
Now that the bald eagle has been delisted in most portions of its
range, all of these ESA permits will continue to provide viable
authorizations under the ESA, should the affected eagle population
become listed under the ESA in the future. The only change is that the
bald eagle became a covered non-listed species under HCPs where it was
delisted. However, none of these incidental take permits provided
explicit authorization for take under the Eagle Act.
The conservation measures required to cover the bald eagle and the
golden eagle under previously issued ESA incidental take permits (which
were crafted to safeguard federally listed species, including those
that may be listed in the future) are ``compatible with the
preservation of the bald eagle and the golden eagle'' as required by
the Eagle Act. Therefore, a separate Eagle Act permit is not required
under this final rule. This rule amends the Eagle Act regulations at 50
CFR 22.11 to extend Eagle Act authorization for the take authorized
under the ESA to entities who continue to operate in full compliance
with the terms and conditions of permits issued under ESA section 10.
Failure to abide by the section 10 permit requirements that pertain to
eagles may, however, potentially void the Eagle Act authorization for
these permits and result in permit revocation.
This final regulation diverges moderately from what we proposed in
our June 2007 proposed rule (72 FR 31141). In the proposed rule, we
suggested that section 10 incidental take permittees whose permits
covered bald eagles as the only ESA-listed species would need to follow
the same procedures as persons authorized under section 7 and apply for
an expedited Eagle Act permit, rather than be covered by the new
provision we are adding to 50 CFR 22.11. Although more cumbersome, we
proposed that a new permit would be necessary because we thought that
the ESA permit might be effectively ``null and void,'' since it no
longer covered any species listed under the ESA.
However, after further consideration, we now conclude that a
single-species HCP does not become null and void if the species is
delisted, but instead is ineffective for purposes of providing ESA
authorization as long as the species remains off the List of Endangered
and Threatened Wildlife. However, should the species be re-listed
within the tenure of the permit, the authorization would become
effective (in much the same way that a permit under 50 CFR 17.22(d)
that covers a Candidate species included in a Candidate Conservation
Agreement becomes valid if the species becomes listed). Based on this
approach, the seven section 10 permits that covered bald eagles as the
only ESA-listed species are not null and void and are eligible to be
treated in the same manner as section 10 incidental take permits that
cover bald eagles among additional listed species, because both satisfy
the Eagle Act permit requirement that a permit be procured before a
bald eagle may be taken. Therefore the new provision at 50 CFR 22.11
will cover ESA section 10 incidental take permits that included eagles
as the only ESA-listed species without the need for issuance of an
additional Eagle Act permit.
The new provision at 50 CFR 22.11 also applies to take covered
under future ESA section 10 permits associated with HCPs for multiple
species that include bald eagles or golden eagles as covered species,
whether or not eagles are listed under the ESA.
ESA Section 10(a)(1)(A) Permits
Take of bald eagles also was authorized under the ESA's section
10(a)(1)(A) permits for Scientific Purposes and permits for Enhancement
of Propagation or Survival (i.e., Recovery permits). Many of these
permits specifically provided take authorization under the Eagle Act in
addition to the ESA authorization, and those permits will continue to
serve as valid take authorizations under the Eagle Act. However, some
section 10(a)(1)(A) permits provided take authority only under the ESA
and these permits became inactive when the bald eagle was delisted. The
new provision at Sec. 22.11 will extend Eagle Act take authorization
to the holders of those permits for the duration of the term of the
section 10(a)(1)(A) permit, or until the amount or level of take
authorized has been met.
New Permit Provisions Under 50 CFR 22.28
As discussed above, the Eagle Act provides that bald eagles may not
be taken unless a permit is first procured from the Secretary of the
Interior. The new provisions at Sec. 22.11 that extend Eagle Act
coverage to holders of section 10 permits do not apply to section 7
incidental take statements, since those authorizations were not
provided via issuance of a permit. This final rule establishes a
process to issue Eagle Act permits to entities that were subject to ESA
section 7 incidental take authorizations and for which there may
continue to be a need to take eagles in the future.
Through the ESA section 7 process, when the Service concludes that
the agency action will not cause jeopardy or adverse modification, we
include an incidental take statement that specifies the amount or
extent of incidental take that will be caused by the agency's action
and which is exempted from the ESA's take prohibitions. The incidental
take statement includes reasonable and prudent measures and associated
terms and conditions to which the agency (or
[[Page 29078]]
any applicant or grantee of the agency) must adhere in order for the
take exception to apply (see 16 U.S.C. 1536(o)(2)). Those reasonable
and prudent measures and associated terms and conditions in the
incidental take statement also satisfy the statutory mandate of the
Eagle Act that authorized take must be compatible with the preservation
of the eagle. Therefore, criteria for issuing these expedited permits
are limited to (1) whether the action agency (or any applicant or
grantee of the agency) is implementing the action in full compliance
with the terms and conditions of the ESA section 7 incidental take
statement with respect to the take of eagles, and (2) whether new
information is available to indicate that such take is not compatible
with the preservation of the eagle (e.g., that take was or will be
exceeded, or the activity will affect eagles in a manner or to an
extent not previously considered, or the activity will be modified).
For ESA section 7 take statements issued before the date this rule
takes effect, we will not refer such take for prosecution under the
Eagle Act during an interim period that will afford the holders of the
section 7 take statements a reasonable opportunity to obtain an Eagle
Act permit, contingent on their remaining in full compliance with the
terms and conditions of their take statements. For these purposes,
``reasonable opportunity'' means 1 year after the effective date of
this rule, i.e., 13 months from the date of publication of this rule in
the Federal Register. By that date, such applicants need to submit a
completed application under these regulations. For ESA section 7 take
statements issued before the date this rule takes effect, only those
permittees whose activities will continue to take eagles after this 1-
year period need to apply for an Eagle Act permit under these new
regulations (as long as any take that occurs between August 8, 2007
(the effective date of the delisting of most bald eagles in the
coterminous United States), through the end of this 1-year period is in
accordance with the terms and conditions of the previously granted ESA
incidental take statement).
For ESA section 7 incidental take statements issued on or after the
date this rule takes effect, there will be no conversion period. At the
present time, this applies only to the population of eagles found in
the Sonoran Desert region of Arizona. Our aforementioned assurances
that we will not refer take under the Eagle Act do not apply to take
statements issued on or after the date this rule takes effect. If take
of eagles is proposed within an ESA-listed population that we could
authorize in accordance with the statutory and regulatory requirements
of both laws, the Service's Migratory Bird and Endangered Species
programs will coordinate the authorization processes with the goal of
issuing the Eagle Act and ESA authorizations in a synchronized manner.
A separate authorization under the Migratory Bird Treaty Act is not
required. Many impacts authorized under the ESA that will require Eagle
Act authorization will not ``take'' eagles under the MBTA because that
statute does not contain a prohibition against harassment or
disturbance (without injury) of the birds it protects. Therefore,
activities that harass or disturb an eagle would not require MBTA
authorization unless the activity also results in injury or some other
impact prohibited by the MBTA. Even where MBTA take will occur, a
separate MBTA authorization in addition to the Eagle Act authorization
is not required because 50 CFR 22.11(a) exempts those who hold Eagle
Act permits from the requirement to obtain an MBTA permit.
In extending Eagle Act authorizations to entities authorized to
take bald eagles under ESA section 7, we will make the permit available
to either the action agency or the agency's grantee or permittee, or
both. Either or both the action agency or the third party can request
an Eagle Act permit under this section.
In applying for the permit, the applicant must include a written
certification that he or she is in full compliance with all terms and
conditions of the ESA incidental take statement. In making our
determination, we will also review other any other relevant information
available to us, including, but not limited to, any monitoring and
progress reports required and submitted in furtherance of the ESA
incidental take statement.
We anticipate that most permits will be issued with terms and
conditions identical to those of the ESA incidental take statement.
However, based on comments received on the proposed rule, we added
provisions to the final regulation to address re-evaluation of terms
and conditions, either at the request of the applicant, or initiated by
the Service. Persons previously covered under an ESA incidental take
statement, who apply for take authority under the Eagle Act through
these regulations, may request a reevaluation from the Service to
determine whether the conservation measures required under the ESA
authorization are still necessary to satisfy the Eagle Act standard of
compatibility with preservation of the bald eagle, or because of
proposed modifications to the planned activity. However, if the ESA
incidental take statement applies to eagles that are listed under the
ESA, the Eagle Act permit cannot and will not remove or annul any terms
and conditions contained in the ESA incidental take statement. Re-
evaluation of the terms and conditions will likely require more time to
process the application than when the applicant seeks to continue the
past terms and conditions. Following issuance of the Eagle Act permit
(as under most types of permits the Service administers) at any time
during the permit tenure, the permittee may request amendment of his or
her permit subject to general permit regulations at 50 CFR part 13.
We may initiate re-evaluation of terms and conditions under this
rule if certain criteria that previously would have triggered
reinitiation of formal consultation are present (see 50 CFR 402.16).
Those criteria are any of the following: (1) The amount or extent of
incidental take authorized under the take statement is exceeded; (2)
new information reveals effects of the action that may affect eagles in
a manner or to an extent not previously considered; or (3) the activity
will be modified in a manner that causes effects to eagles not
previously considered. If any of these factors is extant, depending on
the specific circumstances, the Service may modify the terms and
conditions as necessary to ensure that the authorized take is
compatible with the preservation of the bald eagle or the golden eagle.
The Service may re-evaluate the terms and conditions either before
issuing the Eagle Act permit, or at any time during the permit tenure
that one of the three ``reinitiation criteria'' triggers such re-
evaluation, just as would be the case for the section 7 authorization.
We do not anticipate that any such review under the Eagle Act would
result in terms and conditions substantially different from those that
would result under section 7 of the ESA.
The permit will be valid until the action that will take eagles, as
described in the ITS or modified to condition the permit issued under
this section, is completed, as long as the permittee complies with the
terms and conditions of the permit, including any modified terms and
conditions.
There is no permit application form or processing fee for this
permit. To apply for a permit under this section, the applicant must
send to his or her Regional Migratory Bird Permit Office a signed
statement requesting an Eagle Act permit under this section and
[[Page 29079]]
certifying that he or she is in full compliance with the terms and
conditions of his or her ESA incidental take statement. If needed and
applicable, the permit office may request the applicant submit copies
of any monitoring and progress reports required under the take
statement.
Revisions to General Permit Conditions at 50 CFR Part 13
As part of establishing the new permit authorizations under 50 CFR
22.28, we are amending the list of permits at 50 CFR 13.12 to add this
new permit type. We are also amending 50 CFR 13.11(d), the nonstandard
fee schedule, to include this new permit and provide that no processing
fee will be charged.
Response to Public Comments
The comments addressed below include only those that pertain to the
provisions being finalized in this rule. These include comments from
two national environmental advocacy organizations, two industry
associations, two law firms on behalf of real estate developers, one
consultant, two committees representing multiple State natural resource
agencies, and one Federal reclamation project. The remainder of the
substantive comments we received in response to the June 5, 2007,
proposed rule will be addressed in a subsequent rulemaking.
Comment 1: The criteria for permit issuance should be more
stringent. Rather than give these ``grandfathering'' authorizations the
barest of reviews, the Service must establish a system to assess these
actions in light of the unique requirements of the Eagle Act. Language
should be added to the sections on ``Applying for a Permit'' and
``Required Determinations'' to clarify that, before extending Eagle Act
authorization, the Service will review whether the taking is necessary
to protect an interest in a particular locality and whether the take is
compatible with the preservation of the eagle. Before issuing these
permits, the Service should also consider whether additional permit
conditions or conservation measures are needed.
Service response: The take that will be authorized under the Eagle
Act through these permits has been (or will be) reviewed at least twice
by the Service. First, at the time the original ESA authorization was
issued, the Service reviewed the take under either section 7 or section
10 of the ESA. Prior to issuing a section 7 incidental take statement,
the Service assesses the effects of the action and issues the take
statement only if we conclude the take would not jeopardize the
continued existence of bald eagles. For section 10 permits, the Service
determines that the taking will not appreciably reduce the likelihood
of survival or recovery of the species. For each of the ESA
authorizations we issued, we included a statement that we did not
intend to bring enforcement action under either the Eagle Act or the
MBTA for the ESA-authorized take. Though the take was not technically
authorized under the MBTA or the Eagle Act through the ESA
authorization, we determined that the ESA conservation goal was
compatible with the statutory mandate of both Acts. We carefully
considered the consequences of extending Eagle Act authorization to
these actions before proposing to do so in our June 5, 2007, proposed
rule (see 72 FR 31141) and since then, as we examined public input on
that rule. Our conclusion is that the taking authorized by the ESA
authorizations is compatible with the preservation of the bald eagle,
individually and cumulatively.
However, the authorizations granted under the ESA were themselves
subject to re-evaluation by the Service under certain limited
circumstances, and through this final rule, we are extending the same
criteria that allowed us to revise terms and conditions under the ESA
authorizations to the Eagle Act authorizations granted herein. For
section 10 permits, we do this by adding language to the new provision
at Sec. 22.11 to clarify that the same regulatory provisions that
applied to section 10(a)(1)(B) permits continue to apply, except that
the revocation criterion is based on the Eagle Act mandate of
compatibility with the preservation of the bald eagle or the golden
eagle, rather than the ESA standard of inconsistency with the criterion
set forth in 16 U.S.C. 1539(a)(2)(B)(iv). Accordingly, the Service
cannot require any additional conservation measure for changed or
unforeseen circumstances than we could have required under the ESA
permit, but if mutually agreed upon conservation measures cannot assure
compatibility with the preservation of the bald eagle or the golden
eagle, the Service may revoke a permit that is determined to be
incompatible with the preservation of the bald eagle or the golden
eagle.
To provide for Service-initiated re-evaluation of the terms and
conditions of section 7 authorizations, we have added language to the
final regulations that mirrors the criteria for reinitiation of formal
consultation under section 7, but is based on the Eagle Act standard of
compatibility with the preservation of the bald eagle or the golden
eagle.
Regarding whether the Service, before issuing each permit, must
make the determination that take is necessary to protect an interest in
a particular locality, we believe that extending Eagle Act
authorization to take that was previously exempted under the ESA is
necessary to protect the legitimate interests of those members of the
public, in particular localities, who were proceeding in good faith
under previously issued ESA authorizations and were complying with all
required conservation measures of their take statements.
Comment 2: The regulations should contain an explicit finding that
issuing Eagle Act permits for previously issued ESA authorizations is
consistent with the Eagle Act's take authorization provisions at 16
U.S.C. 668a.
Service response: We found above that the permits issued under this
rulemaking are consistent with the Eagle Act. Additionally, based on
this finding, the final regulations continue to use as the sole
criterion for permit issuance whether the applicant is implementing the
action as analyzed in the formal consultation and continues to fully
comply with the terms and conditions of the previously issued ESA
authorization.
Comment 3: The scope of ``take'' under the Eagle Act is far
narrower than under the ESA. Therefore, the expedited permit processing
criteria are appropriate.
Service response: Our conclusion that take previously authorized
under the ESA is compatible with the preservation of the bald eagle is
not based on a relative comparison of the two statutes' definitions of
``take.'' Rather, it is based on the adequacy of the issuance criteria
for ESA authorizations, including minimization, mitigation, and other
conservation measures, designed to protect a species classified as
threatened under the ESA, that would remain as terms and conditions
under the Eagle Act authorization.
Comment 4: In the preamble to the proposed rule, the Service stated
that persons applying under this permit would be given the opportunity
to ask for a re-evaluation of permit conditions, to ensure that
permittees are not compelled to undertake measures that would not
otherwise be required to offset take under the Eagle Act. However, no
such provisions were included within the proposed regulation itself.
Service response: We have added specific provisions for requesting
a re-evaluation of permit conditions to the final rule in two places:
In Sec. 22.28(c),
[[Page 29080]]
Permit conditions; and in Sec. 22.28(e)(2), Applying for an eagle take
permit.
Comment 5: The Service should enact a general permit process
similar to the U.S. Army Corps of Engineers' section 404(e) permit
program under the Clean Water Act. The Eagle Act requirement that a
permit must first be procured before bald eagle take can be authorized
does not necessarily mean an individual permit is required. Without
being automatically authorized via a general permit, some people may be
subjected to criminal and civil penalties because they do not realize
they need an Eagle Act permit.
Service response: The general permit program administered by the
U.S. Army Corps of Engineers (Corps) provides authorization for certain
types of activities without the landowner or developer having to obtain
an individual site-specific permit in advance. The Clean Water Act
specifically authorizes the Corps to issue general permits that are
exempt from individual, case-by-case review (33 U.S.C. 1344(e)). No
such provision exists within the Eagle Act, which states that ``bald
eagles may not be taken for any purpose unless, prior to such taking, a
permit to do so is procured from the Secretary of the Interior'' (16
U.S.C 668a). Because of that provision, we can promulgate regulations
that authorize take of golden eagles without a permit, but not bald
eagles; a regulation is not sufficient authorization, absent a permit
from the Department of the Interior to take bald eagles.
The U.S. Court of Appeals for the District of Columbia Circuit has
held that the Corps' nationwide general permits meet the statutory
definition of rules because they are ``legal prescription[s] of general
and prospective applicability'' Natl. Assn. of Home Builders vs. U.S.
Army Corps of Engineers, 417 F. 3d 1272, 1284, D.C. Cir. 2005. Thus, if
we attempted to authorize take of bald eagles with a ``prescription of
general and prospective applicability'' and without individual permits,
a reviewing court might find this to be inconsistent with the Eagle
Act's requirement that a permit be procured prior to taking bald
eagles. Consequently this final rule continues to require an
application process, review, and issuance of a permit before take of
bald eagles may be authorized under the Eagle Act for ESA section 7
authorizations because they were not provided via a permit from the
Secretary of the Interior.
Regarding the issue of liability for unauthorized take, we believe
that persons who were previously authorized to take eagles under the
ESA should be at least as aware that most bald eagles were delisted and
of the need to gain take authorization under the Eagle Act as the
average citizen who has never had occasion to consider his legal
responsibilities with regard to eagles.
Comment 6: There need to be timelines for issuance of the expedited
permits, i.e., if no action is taken by the Service within 45 days, the
applicant can conclusively presume that the permit is granted.
Service response: Regardless of any presumption on the part of the
applicant, the activity is not authorized under the Eagle Act without a
permit. We intend to issue these permits expeditiously, and we may
include permit processing targets for these types of permits in
forthcoming implementation guidance. However, due to factors not always
under our control, such as the volume of requests, incomplete
information provided by applicants, etc., we cannot always meet desired
targets.
Comment 7: There should be a finite period of time during which
people with previously issued incidental take statements must seek
their conversion to an Eagle Act permit.
Service response: Elsewhere in the preamble, we have clarified that
we expect those persons who wish to be able to continue to rely on the
assurances provided in past ESA section 7 incidental take statements to
apply for permits under this section within 1 year after this rule
takes effect (thirteen months from the date of publication in the
Federal Register). For ESA section 7 take statements issued on or after
the date this rule takes effect, there will be no conversion period:
The recipient of the take statement needs immediately, or concurrent
with the related ESA consultation, to seek a permit under this section
(until such time as a permit is available under Sec. 22.26). An Eagle
Act permit is required to authorize take under the Eagle Act regardless
of whether the take has been exempted under section 7, and our
aforementioned assurances that we will not refer take under the Eagle
Act will not be included in incidental take statements issued on or
after the date this rule is finalized.
Comment 8: The Service needs to issue an Enforcement Directive from
the Director to the field providing assurances during the interim
period that it will not exercise any enforcement. The directive should
be similar to the February 9, 1996, memorandum from the Director to the
Regional Directors, which suggested that the Regions include statements
in ESA incidental take authorizations they issue to the effect that the
Service would not initiate enforcement actions under the Eagle Act and
MBTA for the ESA-authorized take of migratory birds and eagles.
Service response: This comment loses some of its urgency with the
release of these final regulations. Even so, an ``enforcement
directive'' that would apply for the next year while applicants undergo
the Eagle Act permitting process may still be desired. However, we do
not agree that an internal memorandum wherein the Director transmits
``recommendations to the Regions as interim guidance,'' as was the case
with the February 9, 1996, memorandum, would provide greater assurances
than we have already provided through language contained in four
separate rulemaking actions (including this one) published in the
Federal Register.
Comment 9: Recipients of technical assistance letters that
authorized activities under the ESA that are inconsistent with the
National Bald Eagle Management Guidelines (see 72 FR 31156, June 5,
2007) may be subject to Eagle Act prosecution. Eagle Act permits should
be expedited for recipients of such technical assistance letters.
Service response: Technical assistance letters could not and did
not provide any authorization to take eagles. The only means available
to gain authorization to take eagles under the ESA was by means of a
permit issued under section 10 or an incidental take statement issued
under section 7. The role of technical assistance letters was to inform
the landowner or project proponent that the Service did not consider
take likely to occur. Generally we issued these letters after providing
technical assistance to the project proponent that included recommended
modifications to the planned activity to minimize the possibility of
take, and after the project proponent agreed to incorporate the
measures. Technical assistance letters do not authorize take should it
occur despite the recommended measures; only a permit or incidental
take statement could absolve a person of liability for take of eagles.
In situations where these letters were issued and the activity
proceeds, there is no Eagle Act violation unless an eagle is disturbed
or otherwise taken, regardless of whether the activity was consistent
or not with the National Bald Eagle Management Guidelines.
If take does occur, the Service is unlikely to prioritize
enforcement actions against a party that followed the
[[Page 29081]]
Service's written advice (in the form of the technical assistance
letter) regarding what steps were necessary to avoid taking eagles.
Furthermore, although take of bald eagles under the Eagle Act can be
authorized only by permit, it is not our goal to encourage applications
for permits to cover take of eagles that is in fact very unlikely to
occur. We believe our conservation mission is best served by helping
the public reduce the likelihood of take, and to provide permits in
appropriate circumstances where take is likely (and cannot practicably
be avoided).
Comment 10: The Service should issue immediate guidance regarding
prospective applicants who were in the midst of the HCP process when
the bald eagle was delisted. The guidance should provide methods and
standards for applicants to follow pending adoption of final take
permit rules. Applicants who conform to the process should be given
written assurances that the Service will not prosecute for eagle take,
and the final rule should provide a means to convert that assurance
into a permit.
Service response: This final rule provides a resolution of the
issue raised by the commenter for most situations where project
proponents were in the midst of developing an HCP that covered eagles
when the bald eagle was delisted. The rule provides Eagle Act
authorization for eagle take authorized under the ESA, including under
future ESA section 10 permits.
However, there are some parties whose uncompleted HCPs were going
to cover bald eagles but no other ESA-listed species, and they are no
longer able to obtain a section 10 permit under the ESA for delisted
eagles and cannot apply for take authorization under the Eagle Act
until we finalize our proposed Eagle act take permit regulations. We
recognize the difficult position in which these parties find
themselves, having expended some effort towards development of HCPs and
permit conditions for purposes of obtaining take authorization for bald
eagles under the ESA. The best solution is that we expeditiously
complete the new permit rule discussed above.
The difficulty with issuing the type of guidance the commenter
suggests is that the handful of applicants in this position had reached
different stages of the process at the time of bald eagle delisting. A
few had nearly finalized development of appropriate minimization,
mitigation, and conservation measures, but others had not. Because
specific measures are needed in each particular situation to ensure
impacts to eagles will be adequately mitigated, general guidance--other
than what we provide in the National Bald Eagle Management Guidelines
(e.g., how to avoid take)--would not be appropriate. For the handful of
applicants who were engaged in the HCP process and cannot avoid taking
eagles, we recommend that each such party continue working with our
Ecological Services Field Office to implement measures that will
minimize take until a means of Eagle Act authorization becomes
available. The Service focuses its enforcement resources on
investigating and prosecuting individuals and companies that take
migratory birds without regard for the consequences of their actions
and the law, especially when available conservation measures have not
been implemented.
Comment 11: The statement that certain section 10 permits are
``null and void'' upon delisting should be struck because the
minimization and mitigation measures are still required. Also, some of
these permits contain the provision that the bald eagle will be covered
if re-listed in the future.
Service response: We addressed this issue in the preamble
discussion above: We do not consider certain section 10 permits to be
``null and void'' because eagles were the only listed species they
covered. Rather, those permits are ``ineffective for purposes of
providing ESA authorization.'' The commenter is technically incorrect
in saying that HCPs that covered bald eagles as the only ESA-listed
species contain the provision that the bald eagle will be covered if
(delisted and) re-listed in the future. Neither the HCP, nor the
permit, nor any implementing agreement included that specific
provision. However, even without such a provision, the result is the
same: If the bald eagle is re-listed for any reason in the future, we
would recognize those permits as valid (within the timeframe for which
the original permit was valid). Therefore, the single-species section
10 permit is not null and void, and can be treated under this
rulemaking in the same manner as a section 10 permit associated with a
multi-species HCP. The validity of the permit for both Eagle Act
authorization and for future authorization under the ESA continues to
be predicated on the permittee's compliance with the terms and
conditions of the ESA permit.
Furthermore, the commenter is correct in noting that, even while
the bald eagle remains off the List of Endangered and Threatened
Wildlife and the single-species permit is ``inactive'' or ``quiescent''
for ESA purposes, if post-delisting take of bald eagles occurs, the
permittee remains responsible for required minimization or mitigation
measures that pertain to bald eagles in order to avoid liability under
the Eagle Act.
Required Determinations
Energy Supply, Distribution or Use (E.O. 13211)
On May 18, 2001, the President issued Executive Order 13211, which
addresses regulations that affect energy supply, distribution, and use.
E.O. 13211 requires agencies to prepare Statements of Energy Effects
when undertaking certain actions.
This rule is not expected to significantly affect energy supplies,
distribution, and use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996),
whenever a Federal agency publishes a notice of rulemaking for any
proposed or final rule, it must prepare and make available for public
comment a regulatory flexibility analysis that describes the effect of
the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions) (5 U.S.C. 601 et
seq.). However, no regulatory flexibility analysis is required if the
head of an agency certifies that the rule would not have a significant
economic impact on a substantial number of small entities. Thus, for a
regulatory flexibility analysis to be required, impacts must exceed a
[[Page 29082]]
threshold for ``significant impact'' and a threshold for a
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA
amended the Regulatory Flexibility Act to require Federal agencies to
provide a statement of the factual basis for certifying that a rule
would not have a significant economic impact on a substantial number of
small entities.
This rule may benefit a variety of small businesses, including real
estate developers and brokers; construction companies; forestry and
logging, farming, and ranching operations; tourism companies; utility
companies; and others who were previously granted authorization to
incidentally take eagles under the ESA. However, the benefits are more
legal in nature than economic because this rule provides legal coverage
under the Eagle Act for activities that are underway and proceeding
under assurances provided by the Service that it would use enforcement
discretion with regard to the Eagle Act as long as the activities are
conducted under the terms and conditions of ESA authorizations. The
Eagle Act authorizations will apply to the same activities for which
these assurances had been provided a connection with an ESA
authorization. Thus, additional economic benefits will not be
significant.
The Department of the Interior certifies that this rule would not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Will not have an annual effect on the economy of $100 million or
more. The principal economic effect of the rule would be to remove
uncertainty and facilitate transactions related to activities that may
incidentally take bald eagles, where the take had been authorized until
the bald eagle was delisted under the ESA. Small entities that
benefited from the issuance of permits under the ESA will continue to
benefit from permits issued under this rule.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. The permits issued under this
regulation will not significantly affect costs or prices in any sector
of the economy. The rule provides regulatory assurances under the Eagle
Act for take that had previously been authorized under the ESA.
c. Will not have a significant adverse effect on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. This
regulation establishes a mechanism to permit effects from activities
within the United States that were already authorized under a different
statute. Therefore, there is no anticipated negative economic effect to
small businesses resulting from this rule.
Unfunded Mandates Reform Act
A statement containing the information required by the Unfunded
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
a. This rule is not a significant regulatory action under the
Unfunded Mandates Reform Act. A Small Government Agency Plan is not
required. The permit regulations that are established through this
rulemaking will not require actions on the part of small governments.
b. This rule is not a significant regulatory action under the
Unfunded Mandates Reform Act. This rule will not impose an unfunded
mandate on State, local, or tribal governments or the private sector of
more than $100 million per year.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. This rule will affect some private
property insofar as it provides some land owners Eagle Act
authorization for activities on their property that might incidentally
take bald eagles, where the take was or is authorized under the ESA. A
takings implication assessment is not required.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. This rule will not interfere with the States'
ability to manage themselves or their funds. Changes in the regulations
governing the take of eagles should not result in significant economic
impacts because this rule allows for the continuation of a current
activity (take of eagles) albeit under a different statute (shifting
from the ESA to the Eagle Act). A Federalism Assessment is not
required.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential
effects on federally recognized Indian tribes and have determined that
there are no potential effects. This rule will not interfere with
Tribes' ability to manage themselves or their funds. This rule will not
affect the process by which members of federally recognized tribes
apply for and receive permits to possess eagle parts from the National
Eagle Repository or permits to take eagles from the wild for religious
purposes.
Paperwork Reduction Act
This rule does not contain new information collection under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Any information we
collect will be in the form of a certification and is therefore exempt
from Paperwork Reduction Act requirements. We may not collect, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB number.
National Environmental Policy Act
We have considered this action and determined that we do not need
to prepare an environmental assessment (EA) or environmental impact
statement (EIS) in association with the National Environmental Policy
Act of 1969 because this action is categorically excluded from such
analysis under the Department of the Interior's NEPA procedures at 516
DM 8.5(A)(1), which covers changes or amendments to an approved action
when such changes have no or minor potential environmental impact. The
authorizations provided under these regulations are ``approved
actions'' and are being extended with no changes in most cases. If any
permits are issued under these regulations with changed permit
conditions (at the request of the holder of an ESA authorization) and
the changed conditions have the potential for a more than minor impact,
the permits will be subject to the NEPA assessment on a case-by-case
basis before they are issued. Therefore, relative to those permits,
this action is
[[Page 29083]]
categorically excluded under 516 DM 2, Appendix 1.1.
Endangered Species Act Considerations
Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as
amended (16 U.S.C. 1531 et seq.), requires all Federal agencies to
``insure that any action authorized, funded, or carried out * * * is
not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of [critical] habitat.'' This rule provides authorizations
for impacts that were already assessed under section 7 of the ESA and
maintains the requirement to comply with the conservation measures
prescribed under those assessments for listed species. This rule has no
impact on endangered or threatened species.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 22
Birds, Exports, Imports, Migratory birds, Reporting and
recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
0
For the reasons described in the preamble, we amend subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 13--[AMENDED]
0
1. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-1, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
0
2. Amend Sec. 13.11(d)(4) by adding an entry in the table as the last
entry under ``Bald and Golden Eagle Protection Act'', to read as
follows:
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(4) User fees. * * *
----------------------------------------------------------------------------------------------------------------
Type of permit CFR citation Fee Amendment fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Eagle Take--Exempted under ESA............... 50 CFR 22........................
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
0
3. Amend Sec. 13.12(b) by adding to the table the following entry in
numerical order by section number under ``Eagle permits'' to read as
follows:
Sec. 13.12 General information requirements on applications for
permits.
* * * * *
(b) * * *
------------------------------------------------------------------------
Type of permit Section
------------------------------------------------------------------------
* * * * *
Eagle permits:
* * * * *
Eagle Take--Exempted under ESA............................... 22.28
* * * * *
------------------------------------------------------------------------
PART 22--[AMENDED]
0
4. The authority citation for part 22 is revised to read as follows:
Authority: 16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C.
1531-1544.
0
5. Amend Sec. 22.1 by revising the first sentence to read as follows:
Sec. 22.1 What is the purpose of this part?
This part controls the taking, possession, and transportation
within the United States of bald eagles (Haliaeetus leucocephalus) and
golden eagles (Aquila chrysaetos) and their parts, nests, and eggs for
scientific, educational, and depredation control purposes; for the
religious purposes of American Indian tribes; and to protect other
interests in a particular locality. * * *
0
6. Amend Sec. 22.11 as follows:
0
a. By revising the first sentence of the introductory text to read as
set forth below;
0
b. By redesignating paragraphs (a), (b), and (c) as paragraphs (b),
(c), and (d); and
0
c. By adding a new paragraph (a) to read as set forth below.
Sec. 22.11 What is the relationship to other permit requirements?
You may not take, possess, or transport any bald eagle (Haliaeetus
leucocephalus) or any golden eagle (Aquila chrysaetos), or the parts,
nests, or eggs of such birds, except as allowed by a valid permit
issued under this part, 50 CFR part 13, 50 CFR part 17, and/or 50 CFR
part 21 as provided by Sec. 21.2, or authorized under a depredation
order issued under subpart D of this part. * * *
(a) A permit that covers take of bald eagles or golden eagles under
50 CFR part 17 for purposes of providing prospective or current ESA
authorization constitutes a valid permit issued under this part for any
take authorized under the permit issued under part 17 as long as the
permittee is in full compliance with the terms and conditions of the
permit issued under part 17. The provisions of part 17 that originally
applied will apply for purposes of the Eagle Act authorization, except
that the criterion for revocation of the permit is that the activity is
incompatible with the preservation of the bald eagle or the golden
eagle rather than inconsistent with the criterion set forth in 16
U.S.C. 1539(a)(2)(B)(iv).
* * * * *
0
7. Amend part 22, subpart C, by adding new Sec. 22.26, Sec. 22.27 and
Sec. 22.28 to read as follows:
Subpart C--Eagle Permits
* * * * *
[[Page 29084]]
Sec. 22.26 [Reserved]
Sec. 22.27 [Reserved]
Sec. 22.28 Permits for bald eagle take exempted under the Endangered
Species Act.
(a) Purpose and scope. This permit authorizes take of bald eagles
(Haliaeetus leucocephalus) in compliance with the terms and conditions
of a section 7 incidental take statement under the Endangered Species
Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.; 50 CFR 402,
Subpart B).
(b) Issuance Criteria. Before issuing you a permit under this
section, we must find that you are in full compliance with the terms
and conditions contained in the applicable ESA incidental take
statement for take of eagles, based on your certification and any other
relevant information available to us, including, but not limited to,
monitoring or progress reports required pursuant to your incidental
take statement. The terms and conditions of the Eagle Act permit under
this section, including any modified terms and conditions, must be
compatible with the preservation of the bald eagle.
(c) Permit conditions. (1) You must comply with all terms and
conditions of the incidental take statement issued under section 7 of
the ESA, or modified measures specified in the terms of your permit
issued under this section. At permit issuance or at any time during its
tenure, the Service may modify the terms and conditions that were
included in your ESA incidental take statement, based on one or more of
the following factors:
(i) You requested and received modified measures because some of
the requirements for take authorization under the ESA were not
necessary for take authorization under the Eagle Act;
(ii) The amount or extent of incidental take authorized under the
take statement is exceeded;
(iii) New information reveals effects of the action that may affect
eagles in a manner or to an extent not previously considered, and
requires modification of the terms and conditions to ensure the
preservation of the bald eagle or the golden eagle; or
(iv) The activity will be modified by the permittee in a manner
that causes effects to eagles that were not previously considered and
which requires modification of the terms and conditions in the
incidental take statement in order to ensure the preservation of the
bald eagle or the golden eagle.
(2) During any period when the eagles covered by your incidental
take statement are listed under the ESA, you must comply with the terms
and conditions of both the incidental take statement and the permit
issued under this section.
(d) Permit duration. The permit will be valid until the action that
will take eagles, as described in the incidental take statement or
modified to condition the permit issued under this section, is
completed, as long as the permittee complies with the terms and
conditions of the permit, including any modified terms and conditions.
(e) Applying for an eagle take permit. (1) Your application must
consist of a copy of the applicable section 7 incidental take statement
issued pursuant to the Endangered Species Act (ESA), and a signed
certification that you are in full compliance with all terms and
conditions of the ESA incidental take statement.
(2) If you request reevaluation of the terms and conditions
required under your previously granted ESA incidental take statement
for eagles, you must include a description of the modifications you
request, and an explanation for why you believe the original conditions
or measures are not reasonably justified to offset the detrimental
impact of the permitted activity on eagles.
(3) Send completed permit applications to the Regional Director of
the Region in which the disturbance would occur--Attention: Migratory
Bird Permit Office. You can find the current addresses for the Regional
Directors in Sec. 2.2 of subchapter A of this chapter.
Dated: April 22, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-11091 Filed 5-19-08; 8:45 am]
BILLING CODE 4310-55-P
